B. Duty of Fair Representation

• Jurisdiction: New York

B. Duty of Fair Representation

The duty of fair representation is the legal obligation of a union that is the exclusive representative of a unit of employees to provide adequate, appropriate non-discriminatory representation to all unit employees in negotiations, contract administration and, perhaps, other employment related matters. The failure of the union to fulfill this obligation may subject it to liability for damages. This duty, which was first developed by the federal courts in their application of the Railway Labor Act,⁴⁴⁵ is subject to concurrent jurisdiction of the courts and labor relations boards.⁴⁴⁶

In 2018, the Taylor Law was amended to modify the scope of the duty of fair representation of a union to a public sector employee who chooses not to join the union. ⁴⁴⁷ Under the amendment, the duty to non-members is now limited to contract negotiations and enforcement of contract terms. A public sector union is not obligated to represent a non-member during employer questioning, in administrative proceedings to enforce statutory or regulatory rights or in "in any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of [an] employee where the non-member is permitted to proceed without the employee organization and be represented by his/her own advocate."⁴⁴⁸

Generally, however, a union breaches its duty of fair representation when its "conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith."⁴⁴⁹ In the context of collective bargaining, a union is accorded broad discretion in determining what compromises are appropriate notwithstanding the fact that some unit employees will fare better than others.⁴⁵⁰ In contract enforcement, the standard is that "a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion."⁴⁵¹ This raises the question of the extent to which negligence may constitute the perfunctory processing of grievances. The answer is not clear. Mere negligence would appear to be sufficient for a violation according to the Ninth Circuit,⁴⁵² but only intentional misconduct would satisfy the test of the Seventh Circuit.⁴⁵³ The other circuits seem to apply a gross negligence standard.⁴⁵⁴

In a case dealing with negotiations rather than grievance administration,⁴⁵⁵ the U.S. Supreme Court rejected both the Seventh and Ninth Circuits' analyses, holding that in negotiations the test is not whether the union's action demonstrated "good faith and honesty of purpose," but whether the union's conduct was within a "wide range of reasonableness."⁴⁵⁶ The Court went on to express its "doubt . . . that a bright line could be drawn between contract administration and contract negotiation."⁴⁵⁷

PERB, too, had a gross negligence standard,⁴⁵⁸ but the Third Department rejected PERB's analysis and held that a violation cannot be found without deliberate invidious conduct.⁴⁵⁹ The Fourth Department had previously found that a union is liable for a breach of its duty of fair representation if it "makes no decision as to the merit of an individual's grievance but merely allows it to expire by negligently failing to take a basic and required step towards resolving it."⁴⁶⁰ PERB now applies the Third Department test and dismisses duty of fair representation charges in the absence of discriminatory intent,⁴⁶¹ improper motivation, bad faith or arbitrary conduct by the union.⁴⁶² Under PERB precedent, a union is entitled to a broad range of discretion in determining whether a particular grievance should be taken to arbitration.⁴⁶³

A union's duty to represent union members with respect to matters other than collective bargaining and contract administration is not clear. In general, the duty of fair representation under the Taylor Law does not require a union to pursue litigation on behalf of a unit member. If a union, however, has represented other unit members in similar litigation that was successful, and the evidence demonstrates that the denial of representation to the charging party was arbitrary, discriminatory or in bad faith, a breach of the duty of fair representation can be established.⁴⁶⁴ Under the 2018 Taylor Law...